III. The development of sexual orientation related anti-discrimination and equal treatment policymaking in Hungary

This part of my paper will give an overview of the history of sexual orientation and gender identity related anti-discrimination and equal treatment policymaking in Hungary, by emphasising not only the role of European institutions but also that of national and international NGOs in advancing this issue in the Hungarian context. Examples of practical application of equal treatment claims will also be presented in order to highlight the opportunities provided by equal treatment legislation for LGBT people to fight against discrimination in their everyday life.

III.1. Looking back

In Hungary the legislation concerning same-sex relations was clearly discriminative before 2002. Certain provisions of the Hungarian criminal law functioned as the basis of institutionalised discrimination of homosexuals: “illegitimate” relationships between same- sex partners suffered more serious consequences than those of different-sex partners. (For example, the age of consent was 18 for same-sex partners whereas it was 14 for different-sex partners.) The obsolete terminology used in legislation for same-sex relationships (for example, the use of the term ‘természet elleni fajtalanság’: “perversion against nature” that remained in operation in some sections of the criminal law even after 2002) also suggested social rejection and discrimination.

The Hungarian history of legal persecution of homosexuals (See: Table A) shows that the social rejection reflected by the penal codes was rooted in a kind of moral judgement, inherited from Christian doctrines. Though certain European authors raised their voice against the legal discrimination of homosexuals already from the second half of the 19th century, and some of these early anti-discriminatory arguments – especially those of Károly Kertbeny, who coined the word 'homosexual' in 1868-69 – emphasised in a very modern manner that the state should not intervene in the private lives of individuals. However, European legislation – and Hungarian law, also – soon became dominated by a “medicalised” model of homosexuality (cf. Takács 2004: 81-92).

In the second half of the 20th century Hungarian law makers defined homosexuality as an “abnormal” biological phenomenon which at the same time – surprisingly – can be learnt, and this learning process can have dangerous consequences. By the end of the 1990s the contradictions inherent in views of Hungarian legislation on homosexuality became apparent: in certain court cases judges stayed the proceedings referring to provisions discriminating against same-sex relationships as being unconstitutional. The expectations of the international legal environment especially those of the European Union also projected the necessity of re-examining the discriminative legal treatment of same-sex relationships (cf. Takács 2004: 92-94).

By examining the historically changing views on homosexuality reflected by Hungarian legislation, especially during the 19th and 20th century, we can find different versions of the social categorisation of homosexuality: it was defined as a sin until the end of the 19th century, as an illness until the second half of the 20th century and later as a form of a somewhat dangerous social deviance. Therefore viewing homosexuality as a freely chosen lifestyle did not appear – and still does not seem to appear – to be part of the choices reflected by Hungarian legislation.

Table A: Overview of the legal prosecution of same-sex sexual relationships in Hungary

1978-2002	Different ages of consent: 14 for heterosexual relationships, 18 for homosexual ones; maximum penalty for conducting “perversion against nature” (p.a.n.) with same-sex partner under the age of 18 is 3 years imprisonment^¹
1961-1978	Different ages of consent: 14 for heterosexual relationships, 20 for homosexual ones; Special clause on “perversion against nature conducted in a scandalous manner”, causing a public scandal; “Coerced perversion against nature” – only applicable outside the institution of marriage (special clause providing that if the perpetrator and the victim get married before the first judgement, the punishment can be mitigated to any extent)^² General prosecution of p.a.n. ceased (citing medical arguments saying that homosexuality is a biological phenomenon therefore it cannot be handled legally as crime); maximum penalty for conducting p.a.n. with a partner under the age of 20 or causing a public scandal is 3 years imprisonment
1878-1961	For committing p.a.n. men as well as women could be prosecuted; three forms of p.a.n. are distinguished: conducted with an animal; with a same-sex partner; with a different-sex partner in an unnatural way. Consensual same-sex relationships were considered to be milder crimes and punishable with a maximum of one year imprisonment; the coerced forms with up to five years imprisonment.^³
Before 1878	There was no punishment defined for p.a.n. and women could not be prosecuted for p.a.n. according to Hungarian law. Explanation for the lack of actual penalisation can be found in Bodo’s Jurisprudentia Criminalis of 1751 stating that “the Hungarian people have attained virtue and chastity to such a degree that there was no need for a special law like this; so imposing no punishment meant that even the reference to the possibility that this kind of crime is at all committable was to be avoided”. Penalty for p.a.n. thus depended on the “wisdom of the judge”. Death penalty for sodomy was forbidden by the enlightened Austrian emperor and Hungarian king, Josef II. in 1787. (According to the 1767 decree of his mother, Marie Therese sodomy was still to be punished by being burnt to death.)

III.2. Fighting against the legal discrimination of LGBT people

In a broad sense the development of sexual orientation related anti-discrimination and equal treatment legislation can be traced back to 1989 when the clause on prohibition of discrimination became a part of the Hungarian Constitution.

Before the introduction of the law on equal treatment and the promotion of equal opportunities^⁴ in 2003, Hungary already had national laws prohibiting discrimination, such as the Constitution, the Labour Code, the Act on Public Education and the Act on Public Health, but only the latter explicitly prohibited sexual orientation-based discrimination (cf. Farkas 2001). In all other cases, the question whether sexual orientation is included under the heading “other situations”, usually ending the list of discriminatory forms based on “race, colour, sex, language, religion, political or other opinion, national or social origin, circumstances of wealth and birth”^⁵ was a matter for interpretation.

During the 1990s there was no sexual orientation related anti-discrimination and equal treatment policymaking on the political agenda. However, the practical application of the general anti-discrimination clause of the Constitution in relation to sexual orientation as a basis for discrimination could be observed in two occasions in the decision making processes of the Hungarian Constitutional Court. Therefore we can agree with the interpretation stating that “because of the weakness of Hungarian anti-discrimination legislation, the Constitutional Court, generally known in Central and Eastern Europe for its pro-active attitudes, seems to have taken the lead in shaping lesbian and gay rights with a more or less progressive attitude” (Farkas 2001:564).

In the 1990s the Hungarian Constitutional Court reached two decisions involving discrimination based on sexual orientation: one in 1995 and one in 1999.

In 1995^⁶ in the constitutional examination of marriage between persons of the same-sex and the recognition of partnerships, the Hungarian Constitutional Court rejected in its decision of 14/1995. (III. 13.) that the determination of marriage as a communion of a man and a woman be a case of discrimination infringing on the constitution. According to their arguments “in our culture and in law the institution of marriage is traditionally the union of a man and a woman”, therefore the state “can offer different legal options for traditional and currently exceptional communities” because “the right of the affected person is not that the same institutions be available to everybody” (cf.: Farkas 2001:567-568).

At the same time the Hungarian Constitutional Court stated that a lasting communion of two persons could constitute such values that they were entitled to legal recognition of their communion based on a fair recognition of the personal dignity of the involved persons irrespective of their sexes. According to the Court’s argumentation the question, as to whether the partners are of different sexes or of the same-sex, is related to disadvantageous differentiation: “The cohabitation of persons of the same-sex, which in all respects is very similar to the cohabitation of partners in a [different-sex] domestic partnership – involving a common household, as well as an emotional, economic and sexual relationship … – gives rise today, albeit to a lesser extent, to the same necessity for legal recognition as it did in the 1950s for those in a [different-sex] domestic partnership. … The sex of partners … may be significant when the regulation concerns a common child or … a marriage with another person. However, if these exceptional considerations do not apply, the exclusion from regulations covering … [different-sex] domestic partnership … is arbitrary and violates human dignity; therefore it is discrimination contrary to Article 70/A … The benefits (social and social security) that can be given only on the basis of a domestic partnership cannot depend only on the sex of the two people living together” (Farkas 2001:568).

Thus in 1995 the Court legalised lesbian and gay partnership by declaring that the previous law limiting partnerships to ‘those formed between adult men and women’ was unconstitutional. The Parliament was ordered to make the changes necessary to recognise same-sex partnerships by 1 March 1996. The partnership law in Hungary in its present form – after changing Art. 578/G and Art. 685/A of Act No. 4 of the Hungarian Civil Code – includes any couple, of whatever sex, that live together permanently in a state of ‘financial and emotional communion’. It is a factual legal relationship, which comes into existence without official registration; thus it has underlying problems of proof. Law reform is, therefore, needed to ‘institutionalise’ – at least to a certain degree – same-sex relationships and to prevent family and other policy practices discriminating against same-sex couples.

In 1999 the Court found the sexual orientation based differentiation in paragraph 203 of the Penal Code (punishing incest of siblings) unconstitutional.^⁷ In the case of the various deeds determined as incest in the Criminal Code § 203 the constitutional examination had to answer the question whether § 70/A of the Hungarian Constitution, forbidding discrimination was infringed by the fact that the law only punished sexual relations between siblings of the same-sex. Incest between siblings of differing sexes was after all not liable to any criminal sanctions, that is to say, the law differentiates on the grounds of sexual orientation between siblings of the same-sex on the one hand and those of differing sexes on the other.

The Hungarian Constitutional Court established in its 20/1999. (VI. 25.) decision, that this differentiation on the grounds of sexual orientation is covered by the item “other cases” in the introduction of § 70/A. of the Hungarian Constitution. The judgment had to examine whether there are substantial reasons for this differentiation. The Hungarian Constitutional Court found no such reason in the examined case therefore there were no grounds for different criminal measures against incest between siblings of different sexes and incest between siblings of the same-sex. Nor could it be shown that the dangers posed to society by these actions would be different.

The first Hungarian law explicitly recognising the necessity of equal treatment on the basis of sexual orientation was the Act on Public Health, introduced in 1997.^⁸

At the beginning of the 21^st century Hungary was among the very few European countries – besides, for example, Austria – where the national Penal Code openly discriminated between same-sex and different sex partners concerning the age of consent in a sexual relationship.

In June 2002 the European Parliamentary Committee on foreign affairs issued a recommendation that “reiterate[d] its call upon the Hungarian government to eliminate provisions in the penal code which discriminate against homosexual men and lesbian women, notably article 199”.^⁹ Soon after this recommendation, in September 2002 the Hungarian Constitutional Court – perhaps with a view that a country being at that time at the threshold of the European Union membership cannot wait any longer with such decisions – ruled that paragraphs 199 and 200 of the Hungarian Penal Code were unconstitutional and eliminated them.^¹⁰

In the following I would like to quote from the statements of the Hungarian Constitutional Court on discrimination based on sexual orientation, published with its ruling in 2002:^¹¹

In 1984 the European Parliament accepted a resolution for the first time, in which it called on member states to stop prosecuting adults for consensual homosexual relations on the one hand, and to determine equal ages of consent for heterosexual and homosexual relations on the other. Following this, in the yearly Human Rights Assessment Reports, as well as in the special resolutions of 1994 and 1998, the European Parliament took a position on the issue of equal rights for homosexuals and lesbians and again urged that criminal law measures based on sexual orientation be resolved, including the ending of unequal ages of consent. The special resolution passed in 1998 confirmed that the European Parliament would not approve the admission of such a member state, whose law, or political practice infringes on the human rights of homosexual persons.

The Hungarian Constitutional Court, in considering the present case, paid special attention to relevant documents of the European institutions devoted to the protection of human rights: the Legal Affairs and Human Rights Committee of the Parliamentary Assembly of the Council of Europe (henceforth: LAHRC – Committee) and the European Court of Human Rights (henceforth: ECHR – Court), as well as the Parliamentary Assembly of the Council of Europe (henceforth: PA – Assembly).

The main elements of the ECHR’s decisions in the matter of the criminal regulation of homosexual behaviour can be gathered as follows:^¹² Criminal measures against voluntary, consensual homosexual activity constitute interference into the private lives of individuals on the part of the state or, more precisely an infringement of the right to maintain respect for the chosen sexual practice [European Convention on Human Rights – Rome, November 4^th, 1950, Article 8.](Henceforth: Convention). State interference in the most intimate aspect of private life encroaches on the most personal manifestation of an individual therefore the state is only entitled to do so on the grounds of extraordinarily serious reasons.

The ECHR entrusts nation states with the greatest possible degree of consideration, so that they decide on the necessary measures to protect morality, or the rights and freedoms of others, in the given society. This is valid, in particular, in determining the age up to which it is justified to use criminal measures to protect the young from such sexual behaviour with which they may exclude themselves from the majority of society and which they may themselves regret later. According to the ECHR’s position, criminal measures may be necessary in a democratic society to protect those, who are particularly vulnerable due to their age, from corruption and sexual exploitation.

The ECHR did not take a position on whether the differences in criminal penalties applicable to men and those applicable in the cases of heterosexual or lesbian relations are discriminatory. According to the view of the ECHR no further examination was necessary once violation of Article 8 of the Convention – e.g. state interference into the private lives of individuals – was established.

The Hungarian Constitutional Court stated that the combined consideration of Articles 8 and 14 of the Convention as in the Sutherland case^¹³ were relevant and could therefore be applied in their decisions: The LAHRC (Legal Affairs and Human Rights Committee) did not find objective and reasonable grounds for holding that the age of consent for homosexual relations between men should be higher than that for lesbian and heterosexual relations in examining the complaint against the legislation at that time in force in Great Britain and Northern Ireland. The appropriate instruments of the criminal law and their application were discriminatory infringing the Convention in its provisions for the right to maintain respect for private life. The ECHR Court did not in the end take a position in the case, since the offending legislation changed in the meantime.^¹⁴

The LAHRC (Committee) considered the case to be the appropriate occasion to review the precedent law in the light of the changes that had occurred in the past twenty years and found – contrary to its previous standpoint – that there were no reasonable and objective grounds to maintain differing ages at which homosexual and heterosexual actions could legally be initiated, or that the determination of such differing ages was not a commensurate means to achieve the intended goals. The LAHRC (Committee) did not recognise the submission that society supports the heterosexual lifestyle and condemns the homosexual one as an acceptable justification for differing criminal laws.

The LAHRC (Committee) drew attention to the fact that Article 14 of the Convention protects against the discrimination without adequate cause of persons who are in largely similar situations: The differing treatment is especially hurtful if it does not serve any lawful purpose, or if the applied instruments are not commensurate with the intended goals. Nevertheless, the Committee recognised that states have a certain degree of freedom to determine how to justify and which degrees of difference justify separate treatment of similar circumstances.

At the time of the first decision of the Court in the matter of the criminal prosecution of homosexual behaviour in 1981, the Assembly made a statement in defence of the rights of homosexual persons. The Assembly called on the World Health Organisation to delete homosexuality from the international list of diseases (this happened in 1991) and accepted a motion against various forms of discrimination of homosexuals, including, among others, the matter of the ending of differing ages of consent. Almost twenty years later, on September 26^th, 2000, the Assembly accepted a motion to review the situation of homosexuals again. The Assembly called on the Council of Ministers to demand that member states determine equal ages of consent for homosexual and heterosexual activities in their criminal laws.

This jurisprudence clearly shows that rulings of the ECHR and even statements by the various committees of the Council of Europe played a crucial part completing an anti-discrimination legislation project in member states, in this case Hungary.

There are several decisions of the European Court of Human Rights that were or can be potentially influential on national LGBT anti-discrimination legislation. These decisions are collected in the following Table. (See: Table B.)

TABLE B: European Court of Human Rights decisions potentially influential on national LGBT anti-discrimination legislation^¹⁵

1981	In the case of Dudgeon v. UK (Judgment: 1981 October 22), the European Court of Human Rights for the first time declared that legislation criminalising consensual sexual acts between adult men in Northern Ireland was in breach of Convention Article 8 which provides a right to a private life. The Court also confirmed that such legislation contradicted the right to a private life in the case of Norris v. Ireland (1988 October 26), Modinos v. Cyprus (1993 April 22), and A.D.T. v. UK (2000 July 31)
1999	In the case of Salgueiro Da Silva Mouta v. Portugal (1999 December 21), the Court declared that refusing child custody to a gay man simply because of his homosexuality was in breach of Article 8 of the Convention, the right to a private life. It was declared discrimination on the grounds of sexual orientation and violated Article 14 of the Convention which prohibits discrimination. In this case, after divorcing his wife, Mr Mouta was granted access to his child. However, his former wife did not comply with the agreement and did not allow Mr Mouta to visit their child. During the court battles in Portugal, Mr Mouta lost his case and child custody was granted to his former wife. The reason given to justify refusing him child custody was his homosexuality and cohabitation with another man.
2001	In the case of Sutherland v. UK (2001 March 27 – striking out) the Court found that the higher age of consent for gay men was discriminatory and violated a right to a private life. This case was supported by Stonewall, a British LGB NGO and resulted in an equal age of consent in the UK (from January 2001). The European Court of Human Rights confirmed that the higher age of consent for gay men was discriminatory and in breach of the European Convention on Human Rights in two more recent judgements, L. and V. v. Austria (2003 September 9) and S.L. v. Austria (2003 September 9).
2001	The Goodwin v. UK (2001 July 11) case is related to the legal status of transsexuals in the UK (treatment in relation to employment, social security, and pensions, and inability to marry). The Court found a test of congruent biological factors could no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual, and found no justification for barring the transsexual from enjoying the right to marry under any circumstances. In July 2004 the Gender Recognition Act was introduced in the UK.
2003	Karner v. Austria (2003 July 24) is the first ever case relating to the rights of same-sex partners that the Court has agreed to consider. It involved a complaint from Siegmund Karner, an Austrian gay man who has lived in his male partner’s flat since 1989 and shared the expenses of the flat. Mr Karner’s partner died in 1994 and designated Mr Karner as his heir. However, the landlord of the property started the process of terminating the tenancy with Mr Karner. District and Vienna Regional Courts interpreted the term ‘life companion’ of the Rent Act as including same-sex partners who lived together for a long time. However, the Supreme Court disagreed with this interpretation. For the first time in its history, the European Court of Human Rights ruled that this was discrimination based on sexual orientation and that the Convention has been breached.

However, it is important to note that decisions of national legislative bodies can also influence the judgments of the European Court of Human Rights. For example, in 2003, in the Karner versus Austria case Robert Wintemute, Professor of Human Rights Law at King’s College, London prepared a third party intervention on behalf of ILGA Europe and two other British NGOs. In this intervention the Hungarian Constitutional Court’s decision of 1995^¹⁶ – legalising lesbian and gay partnership by declaring that the previous law limiting partnerships to ‘those formed between adult men and women’ was unconstitutional – was also cited.

According to Robert Wintemute, the main issue of the Karner case – which is the most recent decision of the ECHR relating to LGBT rights – was to decide who has the right to take over a flat when the tenant dies:

“Is it only a spouse? For the moment that's up to each country to decide. What happened was that Austria's legislation from the 1970's said a ‘lebensgefahrte’, life companion, or life partner could take over the flat, and it was actually completely gender neutral. So in theory it could have covered a same-sex partner but the case went to the Austrian Supreme Court, and they said: no, back in the 1970's the legislature was only thinking about unmarried different-sex partners so those are the only partners covered by this legislation, and so then Mr. Karner went to the European Court of Human Rights, except that he died before the case was decided. But he won and they said same-sex partners had to be treated in the same way if they were unmarried. What made that case stronger was that it didn't involve marriage; that made it less controversial. Also there was a strong trend in Western Europe especially, – but actually here Hungary was cited to the court – the trend of giving at least the same rights to same-sex partners as are given to unmarried different-sex partners. I prepared what is known as a third party intervention in that case. Non-governmental organisations are allowed to ask the court to intervene and present additional arguments and information. In this case, because the lawyers in Austria were not specialists on the European convention, they didn't have access to comparative law, to what was going on in other countries, so I prepared the intervention on behalf of ILGA Europe and two other NGOs in Britain. One thing that is helpful for judges is if you just tell them what legislatures have been doing. That's useful information, but what gives them even more courage is if you can quote a court from another country that has reached the same conclusion. Fortunately there were a lot of good decisions from Canada, the U.S., South Africa, even the U.K. provided a positive case and also Hungary: it was the famous Constitutional Court decision of 1995. Fortunately I found an English translation and quoted it to the court. That led them to decide that this was now a minimum standard of equal treatment.”^¹⁷

This example indicates that human rights related legislation at the European level is not only a one-way street, but it can have several directions and intersections. As I already pointed out, European Institutions, especially the rulings of the ECHR, greatly affected the Hungarian Constitutional Court’s judgment of 2002, eliminating the different age of consent for heterosexual and homosexual relationships. On the other hand, a previous decision of the Hungarian Constitution Court was used – together with various court rulings from other countries – in pleading for a positive judgement of the ECHR in an LGBT rights related case.

Hence we see the importance of appropriate national and European level legislation as well as the coordinated work of national and European level NGOs in advancing LGBT rights.

III.3. Developing and applying equal treatment legislation for LGBT people

After completing an anti-discrimination legislation project – e.g. a legal reform eliminating discriminative parts of mainly the national penal code –, the next step is to advance LGBT people’s rights in the form of equal treatment policymaking. Again European institutions can significantly drive these legal reforms. This seems to be true especially in the case of countries preparing for European Union accession.

III.3.1. Development of Hungarian law on equal treatment and promotion of equal opportunities

The first initiatives to develop an anti-discrimination and equal treatment legislation can be traced back to 2000-2001 in Hungary. Developing the law on equal treatment and the promotion of equal opportunities in Hungary took several years. (The main stages of this development are listed in Table C.) Following two attempts to propose special anti-discrimination bills (focussing on racial and gender equality, respectively), the first general anti-discrimination draft bill was submitted by Magda Kósáné Kovács and Katalin Szili (MPs, Hungarian Socialist Party) in April 2001. This draft bill included the prohibition of discrimination based on sexual orientation, and clear references to the 2000/43 Racial Equality Directive as well as the 2000/78 Employment Equality Council Directive. The latter is the first directive explicitly referencing sexual orientation as a protected category.

In the first public version of the concept of the would-be equal treatment act – published on the homepage of the Ministry of Justice in November 2002 – all fourteen protected categories listed in the Employment Directive could be found. (These are the following: race, skin colour, ethnicity, language, disability, state of health, religion, political or other views, sex, sexual orientation, age, social origin, circumstances of wealth and birth, and other situations.)

By the time the draft bill on “equal treatment and the promotion of equal opportunities” reached the stage of parliamentary discussion at the end of 2003, additional categories such as family status, motherhood (pregnancy) or fatherhood, gender identity, part-time or limited period employment status, membership of interest representing bodies, were inserted into the list of protected categories. The bill passed in December 2003 and came into force on January 27^th 2004.

According to experts who worked on the preparation of the conceptual framework of the Hungarian Equal Treatment Act, the concept of the new law closely follows the practice of the Hungarian Constitutional Court, the provisions of relevant Hungarian legislation, and the European Union’s requirements. These experts emphasised that according to the European Commission the main goal of the European anti-discrimination legislation is to provide for effective protection from discrimination and one of the means to achieve this goal, perhaps the most desirable one, is to introduce a separate anti-discrimination act with general effect (cf. Bitskey-Gyulavári 2004:19). Though in the “old” European Union member states we can find examples of having general anti-discrimination acts (as in the Netherlands) as well as applying different acts to promote equal treatment of various disadvantaged social groups (as in the United Kingdom and Ireland), in Hungary it was decided to go for the first, “more desirable” option. In other – present and future – accession countries we can observe the same development. New general anti-discrimination acts were introduced in Romania in 2000 and in Slovakia in 2004, while in Bulgaria they are already working on one.

Table C: Development of Hungarian law on equal treatment and promotion of equal opportunities

2000 May	Proposal for an anti-discrimination bill (focusing on fighting against racism and xenophobia) drafted by Jenő Kaltenbach, Parliamentary Commissioner for Minorities.
2001 February	Anti-discrimination draft Bill (focusing on promoting equal opportunities for women and men) submitted by Péter Hack and Mária Kórodi (MPs, Alliance of Free Democrats)^¹⁸
2001 April	Anti-discrimination draft Bill (general – including the prohibition of discrimination based on sexual orientation) submitted by Magda Kósáné Kovács and Katalin Szili (MPs, Hungarian Socialist Party)^¹⁹. Here there are references to the 2000/43 Racial Equality Directive and the 2000/78 Employment Equality Council Directive already mentioning sexual orientation as a protected category.
2002 November	In a Ministry of Justice document published in November 2002, outlining the concept of a new anti-discrimination and equal treatment law, there were fourteen categories specified as possible causes of discrimination, including sexual orientation. (The other protected categories were race, skin colour, ethnicity, language, disability, state of health, religion, political or other views, sex, age, social origin, circumstances of wealth and birth, and other situations.)
2003	Following inter-ministerial negotiations and public consultations in which NGOs were able to express their views, the final text of the law listed additional protected categories including gender identity. (Other inserted categories were family status, motherhood, pregnancy and fatherhood, part-time or limited period employment status, membership of interest representing bodies.)
2003 December	During the parliamentary debate of the draft bill there was a certain level of rejection expressed and a lack of comprehension voiced against the inclusion of sexual orientation and gender identity into the protected categories by representatives of the opposition parties. Nevertheless, the bill passed.
2004 January 27	The new law comes into operation with the proviso that a new administrative body, an Equal Treatment Authority is to be established by January 1, 2005.
2004 December 22	A government decree is issued establishing the new Equal Treatment Authority in January, 2005.
2005 January	Setting up the Equal Treatment Authority

The idea to introduce a general equal treatment act was not received with uniform enthusiasm in the Hungarian political arena, nor in civil society. Counter arguments were cited by politicians as well as NGOs stating that from the perspective of providing really effective, “tailor-made” social protection for certain social groups – especially for women and Roma people – it would be more suitable to introduce separate acts dealing with their special problems (cf. Bitskey-Gyulavári 2004:22).

During the parliamentary debate of the draft bill there was a certain level of rejection expressed and a lack of comprehension voiced against the inclusion of sexual orientation and gender identity into the protected categories by representatives of the opposition parties.

It is instructive to cite some of the views and worries expressed in the debate:

Flórián Farkas (MP, Fidesz – Hungarian Civic Union) stated that it was not correct to treat various groups with different situations in a uniform way. He pointed out that “being a gipsy is not an illness, neither a birth defect, nor the result of an accident; it cannot be compared with problems of sexual orientation or gender identity. Perhaps it is not a coincidence that the draft proposed by the Minority Parliamentary Commissioner in 2000 was limited to national and ethnic minorities. I propose to start drafting this law afresh. I am among the first ones to support the idea of draft bills concerning the other groups to be protected at the same time … This would be better for everyone.”^²⁰

Erika Szabó (MP, Fidesz – Hungarian Civic Union) argued that “other situations” could replace all the protected categories. Sexual orientation and gender identity as protected categories did not seem to make sense to her. She posed the following ambiguously poetic question: “According to the draft does it mean sexual orientation appropriate to general social norms and expectations, or does it refer to the opposite [e.g. sexual orientation opposing general social norms]?”.^²¹ Szabó also agreed with Farkas that the ethnic group of gypsies should not be categorised together with other “otherness”: “gipsies being an ethnic category struggle with very many problems and obviously feel that they should not necessarily be listed with sexual identity or otherness.”^²²

László Nógrádi (MP, Fidesz – Hungarian Civic Union) emphasised the need to protect certain values: “Protecting our values is not the same as discriminating others. When for example, a religious school pays attention that in the case of hiring a teacher, practising Christian values or at least, identifying with them, is a requirement, then if they don’t hire a homosexual person, or a person representing other values or having another gender identity, it does not mean turning against them; in these cases they protect their own values, and represent the interests of parents whose children are enrolled in such a school because they want the children to be brought up in accordance with their own values. A school has the right to pose such a value system. The other problem with this draft is that it mixes together concepts belonging to different dimensions and different categories. One’s skin colour or ethnic background is not the same as one’s gender identity or state of wealth. These should not be brought to the same dimension and mixed … I am afraid that if we are not careful, the vision of Orwell may come true when all people are equal but some are more equal than others.”^²³

Sándor Lezsák (MP, Hungarian Democratic Forum) expressed his surprise that sexual orientation and gender identity were included as protected categories:

“I do emphasise my surprise that the law would prohibit discrimination based on vaguely defined ‘gender identity’, instead of discrimination between the sexes, e.g. between men and women. Concerning identity consciousness, as it is commonly known, the conceptual counterparts are not women and men, but women with female gender identity and male transvestites having female identity together constitute one pole, while the rest belongs to the other. I don’t understand why the draft prioritises the less tangible gender identity over the objectively existing sex categorisation. According to the draft sexual orientation cannot be the motive of disadvantageous discrimination either. In the view of the author of the draft, and this is how we understand the draft, it would be a completely normal case if one’s sexual interest turns in the direction of animals and reproaching this would be forbidden. According to this law it would be completely normal to have necrophiliac pathologists or paedophile teachers, and their discrimination would be prohibited. This draft leaves it vague what would be considered disadvantageous treatment in the field of sexual orientation. For example, does it qualify as disadvantageous treatment if parents or teachers want to change the sexual orientation of young people with medical treatment, while those with usual orientation wouldn’t be urged to have such an intervention? It is not a problem gathered from thin air because American courts have been occupied for some time with the question whether the director can prescribe medical treatment for homosexual boys in state homes, or not. According to medical opinion on this issue, male homosexuality can be cured with a good chance until the end of puberty, while lawyers – who are not physicians! – find posing this question about the necessity of treatment in itself humiliating and discriminative. Unfortunately this draft is so terse concerning the field of prohibiting discrimination on the basis of sexual orientation that it could even include all aberrations seen in horror movies as permissible and legally protected forms of sexual orientation.”^²⁴

From the arguments I have just presented as well as those of certain other Hungarian politicians and NGOs a certain hierarchical preference can be observed in the different grounds for equal treatment policymaking where providing ethnic groups and women with special protection claims a higher priority than the “special rights” or “privileges” demanded by surprise categories like sexual orientation and gender identity. The reluctance to include new “unusual items” into the list of protected categories of anti-discrimination legislation seems to be not only a Hungarian phenomenon. According to an American legal expert in “popular discourse, the distinction between laws prohibiting discrimination against members of certain groups and affirmative action laws that provide special benefits to members of these groups is breaking down. Laws to protect members of different groups from discrimination are decried with increasing frequency on the basis that they will provide those groups with ‘special rights’ or preferential entitlements. This characterization is used most frequently to describe the extension of the protection of antidiscrimination law to groups that have not previously been protected. The argument that antidiscrimination laws provide special treatment for members of the group that is, or may be, newly protected from discrimination is thus frequently used to oppose laws that prohibit discrimination on the basis of sexual orientation” (Rubin 1998:568).

On the other hand, it is important to note that a different, positive approach towards the inclusion of sexual orientation and gender identity as protected categories could also be observed in Hungary. The Equal Treatment Act was conceived with this approach, focussing on protecting the rights of precisely those categories of people who appeared to have the highest vulnerability to discrimination gauged on previous court cases. In the view of governmental officials directing the introduction of the new act the two most important practical target groups were Roma people and gays. A government official – who did not wish to be named – reported on lawmakers’ dilemmas concerning the issues of target groups, state responsibilities as well as civil consultation, in the following way:

“We wanted an act protecting rights by focusing on redressing grievances; as opposed to 'actionist' legislation pushing societal reform through 'positive' state measures. The aim was that the law should provide legally aggrieved people with proper satisfaction in appropriate procedures. Therefore we had to rely on professionals who had had experience with these kinds of cases because they could tell where the jurisdiction to be handled by this act might run into problems. Obviously the Hungarian Helsinki Committee was able to write good consultation material because they had the necessary experience with jurisdiction, while other activists who tend to focus less on rights representation before courts, wrote observations from other approaches which were not of as much use.

… Last year the Ministry of Justice presented the bill for an Act on Legislation (jogalkotási törvény) to Parliament making civil consultation [i.e. consultation with concerned NGOs] the general rule: putting bills on the internet where anyone can read and comment on them. … The idea to make them public on the internet was also widely criticised … but in my view, it is still a better solution than that the ministry should decide whom they choose as their partners. That is a greater danger. In any case, draft bills are always sent to the Hungarian Press Bureau and the idea is that there should be a central government internet site where you can find all the texts to be commented on. As the law making programme of the government is public, it can be followed easily what is on the law making schedule for the next half year. And at least it could be expected from serious NGOs that they should be able to check this site.

… Naturally, there are always proposals [from NGOs] that cannot be realised, but there are many things that can be done not only with very important acts like this one, but also with the various enacting clauses of acts. It would be good for us, too, because they obviously represent views and knowledge different from ours. Still, it must be noted that the responsibility associated with preparing the law cannot be taken over by NGOs … because consultation does not mean that composing the main goals would be yielded to NGOs who represent only a part of the views [their own among many]. So if everything would go the way that NGOs want, it would not necessarily lead to embracing all the important social interests. … Therefore here [in the civil consultation] the main thing is not to channel the views of their constituencies – parliament is there for dealing with interest channelling. We were not interested in the number of their members but in how useful their comments can be in the codification process. … If they bring up professionally good points and they are able to argue for it, like for example in this case when they pointed to transsexuals, what will happen to them, then we replied that “of course, the act should apply to them, too”. When it [inserting gender identity into the list of protected categories] was discovered later during the parliamentary debate, representatives asked what it referred to, and we told them what it meant. There was some pulling of faces – but that was all. … It is true that during the preparation work, it was a kind of subsidiary proposition that – exactly because we wanted a rights protection kind of act, instead of a positive state action kind – we focussed on the groups that experience the harshest types of discrimination which is actual infringement of lawful rights. For example, an anti-discrimination act cannot do too much with cases like women who cannot do overtime work because they have to go home to take care of their children. These kinds of problems cannot be tackled by a rights protection type of act. Therefore we concentrated on two target groups: Roma people and people being in a minority position on sexual orientation grounds. … It does not mean that the law does not apply to others, too – but as legally they are the prime targets of discrimination, an external observer could have the impression that this law was especially “tailor-made” for them. … For example, female grievances are crucially different from those of gays and Roma people. While Roma people are not allowed to enter to a club or a restaurant, or gays are sacked from their job just because they are gay, it is less typical that one becomes the target of such serious infringements because of being a woman. And what is beyond the handling of these infringements, that is not rights protection any longer but that is positive state action.

… To be precise, this law tries to give a framework for positive state action by introducing the national equal opportunities programme. It is not a coincidence that it has a double title: equal treatment and promotion of equal opportunities. We wanted to emphasize that equal treatment is a right that can be enforced at court, if this right is infringed. So unambiguous specific prohibitions can be composed and forbidding their infringement is a requirement. On the other hand, having equal opportunities is not a right. There are state programmes, state measures to decrease social injustice. For example, work time advantage can be given to women. But this is a positive role the state plays, and not rights protection. … And it [positive state action] cannot really be incorporated into the law because issues like who are considered to be the main target groups for a government, for what they provide more money – because it costs a lot of money –, whether it concentrates on people with large families or on the Roma, how they divide the resources, are political issues. These are political decisions made by the government which will also take the political responsibility for these decisions. But it is impossible to say that it is a state obligation that every year a certain amount of money must be spent on, for example, building houses for Roma people. On the other hand, we can say that it is a state obligation to protect the rights of Roma people when they are at risk of being forced out of their houses

… This present law is not about eliminating all discrimination. The goal was not to decrease everybody’s disadvantages. [The targets were those who] suffer the most severe infringements. And we did not pronounce it [that the practical target groups are Roma and gay people] but it is a rather closed circle, the circle of lawyers dealing with these issues, and among them it is well known that there are these two target groups. It would not be true to say that these two target groups would be our special interest and therefore we shaped the law to them. Simply the situation is such that they have the greatest need of rights protection. Therefore when we create a rights protection law, it will be most applicable to their situation because it tries to offer a solution to their problems.”^²⁵

From this account it is clear that the intention of the Hungarian government officials preparing the new law was to focus on practical legal problems from a specific rights protection perspective. In this context the role of NGOs was to provide practical knowledge accumulated – in this case mainly – from legal practice gained from court jurisdiction, while the government policymakers’ role, especially through the work of ministerial as well as external experts, was to elaborate a theoretical framework that can be effectively applied to practical cases. The main scope of the Hungarian Equal Treatment Act is rights protection: this is the “hard core” to which the “softer” field of promoting equal opportunities was added as a kind of direction indicator. Hungarian law makers seemed to be aware of how difficult – if at all possible – it is to regulate social problems associated with the promotion of equal opportunities by legal means, and they chose to concentrate on more tangible assets.

Focussing on people being in a minority position on sexual orientation grounds as a primary target of the Hungarian Equal Treatment Act – besides the ethnic minority group of Roma – might sound surprising at first but it follows logically from a rights protection perspective: given the fact that there is enough evidence gained from previous court – or legal defence – cases to prove that effective redressing is needed for the legal grievance of certain categories of people.

As far as the inclusion of the “real surprise” category of gender identity is concerned, that can also be explained as a logical extension of applying a rights protection approach. Even though there has not been too much experience accumulated in this field in Hungary as yet, gender identity is a possible ground for discrimination that could have been – and was – taken into consideration.

Finally, it should be emphasised – again – that inclusion of sexual orientation seemed to be in perfect harmony with EU trends reflected by the 2000/78 Employment Equality Council Directive. This fact obviously helped to retain sexual orientation as a protected category despite some of the opposing views. It should also be mentioned that the inclusion of sexual orientation into the list of protected categories was more than just a cosmetic exercise: interestingly, during 2002 the Ministry of Defence eliminated certain parts of two decrees (one from 1996 and one from 2000) according to which homosexuality was regarded as a “personality disorder” and therefore made one unsuitable for compulsory or professional service in the armed forces.^²⁶ The detail of this example shows that the government was in earnest in implementing its anti-discrimination policy.

The appearance of gender identity among the protected categories, on the other hand, cannot be explained by EU trends or expectations: this was achieved mainly because of the effective interest representation strategies applied by Hungarian NGOs, namely the Háttér Support Society for LGBT People together with the Hungarian Helsinki Committee in the course of public consultations, initiated by the Ministry of Justice that provided real opportunities for the interested actors of Hungarian civil society to voice their views. To be fair, it must also be mentioned that – as can be seen from the minutes of the parliamentary debates – a lot of Hungarian MPs were still quite unfamiliar with the concept of “gender identity” and at least one of them interpreted its inclusion as a scandalous surprise.

Therefore it can be said that the power of determination – on the part of the two above mentioned NGOs as well as that of government officials preparing the act in compliance with rights protection principles – provided us with a new law including progressive elements, even when judged in a modern European context.

III.3.2. Practical application of equal treatment claims I. – Actio popularis

Besides the inclusion of gender identity another important novelty of the new law is the possibility for initiating actio popularis e.g. NGOs (societal bodies and special interest groups) can start legal action if the mistreatment is based on a category which is an essential feature of the individual’s personality, also applies to persons belonging to a larger group which may not be exactly determined.^²⁷

The first such actio popularis was initiated by the Háttér Support Society for LGBT People in February 2004. The case was based on the fact that the Károli Gáspár University of the Hungarian Reformed Church – a university established and maintained by the Hungarian Reformed Church but receiving state support and issuing diplomas accepted by the Hungarian state – published on its webpage that persons propagating and living homosexual lifestyles are persona non grata in their pastoral and theology teacher training programs. To prove the discriminative practice the NGO referred to the fact that in the previous year a student was expelled from this university because of his homosexuality. The Metropolitan Court (Fővárosi Bíróság) rejected the case in the first degree, stating that the declaration on the homepage was only an expression of opinion and not discrimination. However, it acknowledged the right of an NGO to start a case on such an abstract basis, and it implicitly accepted that equal treatment legislation also applies to universities maintained by a church and supported financially by the state.

The NGO appealed against the ruling saying that an act cannot be regarded only as an expression of view if a person covered by the protected category suffers disadvantages as a consequence. The second degree court case was also lost by the Háttér Support Society in December, 2004. They are now seeking permission to appeal to the High Court for the case to be reconsidered, and in the event that that is unsuccessful, they will examine the possibility to turn to the European Court of Human Rights.

III.3.3. Practical application of equal treatment claims II. – “Let’s start a family!”

Since same-sex marriage is not possible in Hungary, same-sex partners can emulate some of the conditions of married life only with the help of private legal contracts. The “Let’s start a family!” programme of the Legal Aid Office of Háttér Support Society for LGBT People offers different means for arranging a legal framework to start same-sex family life. These means include a civil union contract for arranging property, financial and personal relationships: encompassing important issues such as providing rights to obtain medical information about the partner’s state of health, and rights of disposal over the partner's assets when that partner is in a helpless state; preparation of a will; appointment of guardians (if there are children). The existence of this program shows that same-sex couples need to make extra efforts if they want to establish a level of family security similar to that inherently enjoyed by married couples.

Establishing legal frameworks for same-sex family life can be even more complicated when one of the partners is a foreign citizen. The following example indicates how difficult it can be if persons want to live together with their partners having a foreign citizenship, especially in the case of same-sex partners.

A same-sex male couple has been living together in Hungary for three years. One of them is a Hungarian, the other is a Romanian citizen. They participated in the “Let’s start a family” programme of Háttér Support Society and made a private life partnership contract with each other. After three years of uninterrupted official stay in Hungary, the man with Romanian citizenship applied for a residence permit: he had a work permit, he had a job and he had a regular income exceeding the Hungarian minimal wage. The Hungarian partner declared in a notarised document the he would provide his partner with free accommodation and any necessary financial – or other type of – support. In order to prove that he was capable of providing this support, the Hungarian partner presented a portfolio worth ten million HUF at the court. However, the Romanian partner’s application for a Hungarian residence permit was rejected by the Hungarian Immigration Office. The main problem with the application was that the Hungarian Immigration Act does not acknowledge one’s cohabiting partner to be a family member as opposed to one’s spouse. According to the law: in the course of applying for a residence permit an official declaration provided by a family member for proving that you have subsistence and accommodation is “especially” appropriate.

In this case the legal problem was that if the Immigration Act legally acknowledged a same-sex partner to be a family member, he would have been able to receive the necessary permission without any difficulty – as in fact otherwise everything was in order. But as this is not the case in Hungary, the Immigration Office did not accept the declaration of the Hungarian same-sex partner as he was not considered to be a “proper family member”. In the second degree procedure, the Immigration Office has already accepted the fact that one partner can provide the other with free accommodation – as at this time their private life partnership contract was attached as an official document. However, there were still some problems with the necessary subsistence level.

At this point the Legal Aid Service of Háttér Support Society, which represented the same-sex couple legally, had two possibilities: First, it could be argued that the disadvantageous discrimination between partners and family members in this context was unconstitutional. However, applying this approach would not promise a practical solution in the short run, and time is a very important factor when people’s everyday life becomes impossible. Secondly, according to Hungarian law in these procedures the principle of free proof has to be applied, e.g. if the law does not order otherwise, any proof can be used freely. The lawyer of Háttér Support Society chose the second option, while also pointing to the text of the Immigration Act referring to the necessary declaration that is “especially” appropriate if provided by a family member. This wording implies that declarations provided by people who are not family members can also be – if not “especially” then just simply – appropriate.

In the meantime the Equal Treatment Act came in force, on the basis of which this case can be interpreted as an example of indirect discrimination, e.g. a seemingly neutral condition, provision, or practice that brings a person covered by a protected category into a substantially more disadvantageous situation than a comparable situation of another person not belonging to the protected category. According to the Equal Treatment Act, it is sufficient to prove that a person belonging to a protected category is brought into a disadvantageous situation therefore in this case it would be the obligation of the Immigration Office to prove that they were not discriminating.

In the course of an administrative procedure the Metropolitan Court (Fővárosi Bíróság) ruled that the previous decision of the Immigration Office should be repealed and that they should start a new immigration procedure. However, the court’s ruling was based on the observation that the state of affairs was not explored sufficiently, and it did not use the indirect discrimination argument at all.

III.3.4. Practical application of equal treatment claims III. – “The pension case”

A good example that can show the influence of European institutions on Hungarian jurisprudence is the following. In 2003 a person died who had been living in cohabitation with his same-sex partner since 1991. The surviving partner applied for a widower’s pension. (As there is no registered partnership for same-sex couples is Hungary, the existence of the partnership had to be proved by a special official certificate.) The National Pensions Authority (Nyugdíjfolyósító Igazgatóság) rejected the pension application in the first and second degree arguing that according to the social security law in the case of the death of one partner in a cohabiting partnership not having children, the surviving partner is eligible for a widow’s or widower’s pension only if ten years of uninterrupted cohabitation can be proved. However, the authority argued, as the modification of the Hungarian Civil Code legalising same-sex partnerships (following the decision of the Hungarian Constitutional Court in 1995)^²⁸ became operational only in 1996, the ten years cohabitation period could only be completed in 2006.

The Háttér Support Society encouraged the surviving partner to let their lawyer represent him and start an action in the Employment Court of Budapest (Fővárosi Munkaügyi Bíróság), arguing that the law maker’s intention in 1996 was to end discrimination in 1996, not in 2006. Therefore any period of cohabitation preceding the legislation should be taken into account. Furthermore, the lawyer of Hátter Support Society showed that a different interpretation of the legislation would lead to consequences at loggerheads with the Constitution.

This case was not only prosecuted at court. Simultaneously, a coordinated lobbying offensive was launched. In October 2003 three NGOs (the Hungarian Civil Liberties Union, the Háttér Support Society and the Hungarian Helsinki Committee) issued a protest declaration. The Minister without Portfolio responsible for equal treatment affairs was approached by activists, leading her to publicly express an opinion in the case saying that she considered it discriminatory. The Minister also turned to the Hungarian Prime Minister’s Office with a view to obtain a government order ending the ambiguity of the social security law. At the same time Háttér Support Society escalated their lobbying to the European level by contacting ILGA-Europe (of which it is a member) and asking them for support in the form of a letter addressed to the Hungarian Prime Minister and government. In this letter ILGA-Europe asked how it was possible that during the final stages of negotiations on Hungary’s accession to the European Union and in the course of codifying national equal treatment legislation of a high European standard, a public body under the direction of the government – the National Pensions Authority – can openly discriminate against same-sex couples.

The government responded by issuing an executive order effective from January 1, 2004 acknowledging that any period of cohabitation prior to 1996 is to be taken into account in the assessment of widow’s or widower's pensions rights. This order provides an underlying assumption namely that if at the time of the death of a partner, the partners are registered at the same address, then the burden of proof is reversed and it is to be assumed that at the time of death the cohabiting partnership existed unless facts emerge that show the opposite. This develops the Constitutional Court’s factual legal relationship into an implied factual relationship based on registered address: thus the registered address carries certain rights with it. Although Háttér Support Society was delighted with this victory, it was decided to continue the case at court asking a retrospective judgement covering the period before the government order came into effect on January 1, 2004, as the case had been before court since February, 2003. The court ruled in favour of this request in September, 2004.

From the point of view of developing anti-discrimination and equal treatment legislation and policymaking the analysis of this case raises two important points. In the first place a precedent was created with potentially far reaching consequences in other fields of law (especially in disputes involving probate law between relatives and surviving partners of the deceased). In the second place this judgement can be interpreted as a symbolic compensation for same-sex partners as it creates a retrospectively valid legal framework covering a period when suitable legislation for same-sex partnership was nonexistent.

This example also clearly illustrates that the existence of internationally operating NGOs acting for and on behalf of their national constituencies can create a new dimension of European-wide activism towards sound policymaking and implementation.